Stenslunde complains that the article was “dreadful” and “inappropriate”, and that at least one of the pictures amounted to soft pornography.

He adds the next page contained a 16-page children’s insert, and argues it is unacceptable that children might have seen the reportage in question.

In later correspondence, it becomes clear that the publication of the picture represents the more important part of his complaint.

The text; pictures

The article was about “swinging” – a lifestyle of sex with many other partners, in front of others, with ropes and chains and the like, and often involving pain.

Several pictures accompanied the text. In the one complained of, a topless woman appeared, with another one bending in front of her, sporting a G-string.

The arguments

Smuts denies any breach of the Press Code, and notes that Stenslunde does not in fact allege such a breach.

She submits that the tone of the article was not in any way titillating, prurient or pornographic, but instead merely reflected on a lifestyle choice made by many people.

She argues there is merit in publishing an article of this nature – it is informative and it enhances tolerance for such practices among consenting adults; it also helps like-minded people to realise their desires are normal and shared by others, and to establish a platform that facilitates an exchange of ideas for both those who practice this lifestyle and those who do not.

She says the article was neither intended to be, nor presented as soft pornography.

In respect of the photographs, Smuts submits these were also not prurient. To the contrary, she says, the majority of them depicted ordinary people and the way they dress when partaking in the activities under discussion.

She adds, “The specific photograph highlighted in the complaint elicited much discussion among staff about whether or not it was appropriate for publication. In the end, it was the social commentary captured in the photograph that persuaded us to include it - while the subjects in the main part of the frame were entwined, a domestic worker is visible to the right of the frame, continuing her work. We felt this set up an interesting contrast and that the photograph should be included for this reason.”

Smuts points out that the newspaper published a parental guidance warning on its front page.

In later correspondence, Stenslunde insists the picture in question was pornographic in nature, and demands an apology.

Analysis

Introductory comments

It is difficult to define pornography. An American judge once admitted this, saying that he could not define the concept, but that he recognised it when he saw it (or something to this effect).

With Stenslunde, I indeed “recognise” the picture in question as one depicting soft pornography – the one women is topless, and is clearly engaged with another woman in a sexual act of sorts. It does not matter whether the newspaper intended the reportage to amount to soft pornography or not – I believe that is the way reasonable readers would have interpreted it.

The picture goes beyond nudity, or art.

The question, though, is if this was in breach of the Press Code and if it crossed the borders of freedom of expression.

Firstly, the Press Code does not prohibit pornography, whether soft or hard – it only disallows child pornography. In other words, in South Africa’s democracy in general, and specifically with regards to the Press Code, a publication’s freedom of expression extends to the publication of pornography – a freedom which should not be interfered with by this office, even if a certain newspaper’s readership is up in arms about it; but, at the same time, it is also a freedom which has its limits (as all freedoms should have).

Section 9.2 of the Code applies in this regard. It reads, “Content which depicts … explicit sex should be avoided unless the public interest dictates otherwise, in which case prominent indication and warning must be displayed indicating that such content is graphic and inappropriate for certain audiences such as children.”

Therefore, the relevant questions are if the:

· publication of a half-naked woman engaged in a sexual act with another woman was in the public interest; and

· newspaper warned the public that the content was graphic and inappropriate for certain audiences, such as children.

I am sceptical about some elements of Smuts’s argument:

· It may be true that such a lifestyle choice is made by “many”, as she says, but somehow I doubt it if they represent a significant percentage of the population (let me add that this is a perception, and not based on scientific evidence);

· The article, and the pictures, were informative, yes, but I am not sure that it “enhanced tolerance” for such practices – it easily could have had the opposite effect as well; and

· The statement that like-minded people were helped to realise their desires were “normal” is a statement which may be queried by many, if not most.

It certainly is true that the reportage has provided a platform for discussion and debate.

Please note that I am not shooting down the gist of her argument as I am merely trying to put it into context. I am also not arguing “public interest” on numbers – even if such a lifestyle choice is made by a minority of the population, which is my contention, it does not follow that the matter is therefore not in the public interest.

Based on the fact that some people made this choice, that some might have been encouraged by the thought that they were not alone in their desires, and especially as the reportage surely enhanced the robustness of the debate, I am convinced that the topic as such was in the public interest.

The issue, therefore, is not if the newspaper should have reported on this matter, but rather how it should have done so. I believe that Stenslunde agrees with this assertion.

Let me now turn to the reportage itself.

The text

I cannot find anything wrong with the tone of the article – on the contrary, it was well-written as it succeeded in portraying the subject-matter realistically, and not merely clinically. Kudos.

The picture

Smuts’s argument regarding this matter is rather interesting – she says the domestic worker going about her usual business at the back of the picture eventually persuaded management to publish the photograph (as this was an “interesting contrast” which amounted to social commentary).

It would have been even more interesting to learn just what this “social commentary” was.

I presume, though, that the mere presence of a domestic worker shows that “swinging” is not something practiced in the confines of secret meetings held in secret places, but that members of the public might also be affected by these practices – which made the publication of the photograph in the public interest.

With this argument, I agree.

General comments

Together with arguments about freedom of expression, and its limitations, a publication should also take its readership into account – it would be most unwise, for example, for a religious magazine to publish pornography.

In this case, I am not convinced that the publication of the picture was the right thing to do – but that decision is not for me to take. “Inappropriate” reportage, if that was indeed the case, is not by default in breach of the Press Code.

I am happy to learn that the publication of the picture elicited much discussion (as it should have) – it shows that decisions of this nature are not taken willy-nilly.

The newspaper did publish an appropriate warning, as provided for in the Code.

Finding

The complaint is dismissed.

Appeal

The Complaints Procedures lay down that within seven working days of receipt of this decision, either party may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at Khanyim@ombudsman.org.za.